PEOPLE v. DELMARLE

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Defendant appeals from an order designating him a level three offender under the Sex Offender Registration Act (Correction Law § 168 et seq.). The point total on the risk assessment instrument (RAI) prepared by the Board of Examiners of Sex Offenders (Board) presumptively classified defendant as a level one offender, but the Board recommended an upward departure to level three based upon factors not adequately taken into account by the RAI ( see Matter of O'Brien v. State of New York Div. of Probation Correctional Servs., 263 A.D.2d 804, 805-806, lv denied 94 N.Y.2d 758). County Court, after considering the recommendation of the Board and materials submitted by both parties ( see § 168-n [3]), agreed with the Board that departure from the presumptive risk level classification of the RAI was warranted, and concluded that defendant was properly designated a level three offender because "the risk of repeat offense is high and there exists a threat to the public safety" (§ 168- l [c]; see O'Brien, 263 A.D.2d at 806; People v. Marinconz, 178 Misc.2d 30, 33-34; People v. Salaam, 174 Misc.2d 726, 736). Upon our review of the record, we conclude that the court's determination of defendant's risk level is based on clear and convincing evidence ( see § 168-n [3]; People v. Brown, 302 A.D.2d 919, 920; People v. Scott, 288 A.D.2d 763, 765).